The Fair Workplaces, Better Jobs Act
On November 27, 2017, the Ontario government passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, which received Royal Assent. Bill 148 makes significant amendments to Ontario’s Employment Standards Act, 2000 (the “ESA”). Certain amendments are already in force, with other amendments coming January 1, 2018, and throughout 2018 and 2019. This blog will focus on the changes to the ESA.
Changes to the ESA
Minimum Wage Increase: The general minimum wage will increase to $14.00 per hour as of January 1, 2018, and then $15.00 an hour on January 1, 2019. The exceptions are students under 18 years old, employees who serve liquor directly to customers and who regularly receive tips or other gratuities from their work, services of hunting and fishing guides, and employees who are homeworkers. These exceptions have their own respective minimum wages.
Vacation and Statutory Holidays: Effective January 1, 2018:
a. Paid vacation will increase to 3 weeks per year after 5 years of service.
b. A new formula for calculating holiday pay: the amount will be calculated by taking the amount of wages the employee earned in the pay period before the holiday, divided by the days worked in that period. This change will lead to more pay for employees who only work a few days per week.
Equal Pay for Equal Work: Effective April 1, 2018, part-time, temporary, and seasonal workers will be entitled to be paid the same as full-time employees when performing “substantially the same” job for the same employer. Different pay will only be allowed if the difference is based on (a) a seniority system; (b) a merit system; (c) quantity or quality of production; or (d) some other “objective factor”. Employees will also have the right to request that the employer review their wages if they believe they are not receiving equal pay for equal work. Employers would not be allowed to reprise employees for inquires about their own wage rate or the wages of other employees.
Independent Contractors: Effective immediately, employers are prohibited from “misclassifying” employees as independent contractors. If there is a “misclassification”, penalties for employers include prosecution, a fine or a conviction. In the event of a dispute regarding whether an individual is an employee or an independent contractor, employers will bear the onus of proving that the individual is truly an independent contractor and not an employee.
Leaves of Absence:
a. Pregnancy Leave – Effective January 1, 2018, pregnancy leave will be increased for employees who experience a still birth or miscarriage from 6 weeks to 12 weeks.
b. Parental Leave – Currently effective, parental leave is extended from 35 weeks to 61 weeks for employees who have taken a pregnancy leave and from 37 weeks to 63 weeks for employees who have not.
c. New Child Death Leave – Effective January 1, 2018, employees will be entitled to a leave of up to 104 weeks following the death of a child.
d. Crime-Related Child Disappearance Leave – Effective January 1, 2018, Crime-Related Child Disappearance Leave will increase from 52 weeks to 104 weeks.
e. Personal Emergency Leave – Effective January 1, 2018, all employers will need to provide 10 days of personal emergency leave and 2 of those days must be paid. Employers are not permitted to require a doctor’s note to support a personal emergency leave.
f. Family Medical Leave – Effective January 1, 2018, Family Medical Leave will increase from 8 weeks to up to 28 weeks in a 52 week period to provide care or support to a family member who has a serious medical condition with a significant risk of death.
g. New Critical Illness Leave – Effective now, employees are entitled to: (i) a leave of up to 37 weeks in a 52-week period for an employee to provide care or support to a critically ill minor child who is a family member of the employee; and (ii) a leave of up to 17 weeks in a 52-week period for an employee to provide care or support to a critically ill adult who is a family member.
h. New Paid Domestic or Sexual Violence Leave – Effective January 1, 2018, only employees who have been employed for at least 13 consecutive weeks will be entitled to a leave of absence where the employee or the employee’s child experiences domestic or sexual violence or the threat of sexual or domestic violence. In each calendar year, an employee is entitled to take up to 10 days of leave and up to 15 weeks of leave. The first 5 days of the leave will be paid with the balance as an unpaid leave. The leave must be taken for any of the purposes listed in the new section 49.7.
Scheduling Changes: Effective January 1, 2019; employees are entitled to the following scheduling changes if they have been employed for at least three months:
a. The right to request schedule or location changes
b. To refuse shift assignments without repercussions if the employer assigns the shift on less than 96 hours of notice.
c. To be entitled to “wages for three hours” upon reporting for work and working less than 3 hours, as well as if their shift is cancelled on less than 48 hours of notice or if they are asked to be on-call. The “on call” rule will not apply to employees performing essential public services.
Enforcement: Effective January 1, 2018, section 96.1 of the ESA is repealed. This section discouraged employees from filing complaints by setting up a system that required them to first confront the employer with an allegation and then wait for a response from the employer. Now, employees can directly file a complaint under the ESA. Further, penalties for violations under the ESA will increase and there can be an award of interest on unpaid wages.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Ontario employers should undertake a review of their employment policies and practices to ensure they are compliant with the portions of Bill 148 that are taking effect immediately and in the next few weeks.
To reach the authors of this blog, Jean-François Lalonde and Marie Kwan, call 613.232.57738.
J.F. Lalonde is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Vice & Hunter LLP. He has extensive experience practicing in the areas of employment law and is a part-time professor at La Cité Collégiale teaching Employment Law for Paralegals.
Marie Kwan is an articling student with Vice & Hunter LLP. She has experience assisting in employment law matters and competed in a labour law moot while in law school.